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Supporters of Lucy the elephant have lost another court case but won the backing of the top judge of the Alberta Court of Appeal.

The Appeal Court ruling Thursday means that Lucy, the only elephant at Edmonton's Valley Zoo, will stay there, barring a further appeal.

Animal rights groups have been trying to get the 36-year-old Asian elephant moved to a sanctuary in the United States. They believe that her life at the city-run zoo is harming her health and she should be moved to a U.S. sanctuary where she can be with other elephants.

The city concedes that Lucy has some health problems, but rejects the idea that her facilities are inadequate, and said she is not healthy enough to survive a long-distance move.

However, the case Thursday was decided not on Lucy's situation, but on whether a lower court judge had made a sound ruling in denying the animal rights groups the chance to take the city to court.

Zoocheck Canada, People for the Ethical Treatment of Animals and Tove Reece of Sherwood Park were seeking to have a 2010 decision overturned. That ruling said that their effort to have the city declared in violation of the Animal Protection Act — because of Lucy's situation — was an abuse of process.

They lost when two judges of the Appeal Court backed the 2010 ruling.

Chief justice dissents

But Chief Justice Catherine Fraser differed in a 42-page dissent, writing that the "case should go to trial on the important points of law that potentially impact on both the protection of animals in this province and the public interest in the city’s compliance with the law. The appellants, for the public and on behalf of Lucy, are entitled to their day in court."

'This case is not about whether Lucy got one less load of hay for breakfast one day. It is about an alleged sustained pattern of conduct over time in the city’s treatment of Lucy contrary to what the law requires and the alleged serious consequences of that conduct. '
— Chief Justice Catherine Fraser

She said that the issue of the city obeying the law is fundamental to democracy. "Is the government, and that includes the city as an arm of the state, immunized from judicial scrutiny of alleged unlawful acts?"

Fraser also said the affidavits submitted by the animal rights groups — from an ecologist, an elephant biologist and ethologist, and two veterinarians — are relevant to the case, despite the city's argument that they are irrelevant.

The groups argued that the public interest was involved in the case, and evidence matters in assessing whether that is correct, she said.

"This case is not about whether Lucy got one less load of hay for breakfast one day. It is about an alleged sustained pattern of conduct over time in the city's treatment of Lucy contrary to what the law requires and the alleged serious consequences of that conduct."

The uncontested evidence "packs a powerful punch.… What it reveals is a disturbing image of the magnitude, gravity and persistence of Lucy's ongoing health problems and the severity of the suffering she continues to endure from the conditions in which she has been confined. And it also exposes who is responsible for those conditions and that suffering."

Based on the evidence, the health problems include chronic respiratory problems, arthritis, foot disorders and obesity, "caused or aggravated by her living conditions at the Valley Zoo, including her social isolation."

Fraser stressed that the evidence from the groups is the only evidence before the court, and could be contradicted at trial. But so far, the city has chosen not to file any evidence. "Maintaining a militant silence was a strategic choice the city made," Fraser said.

Edmonton wants to have it both ways, Fraser said. The city wants to avoid the risk in filing evidence (it could be cross-examined) but wants the court to ignore the evidence filed by the groups. "This ought not to be permitted."

Fraser said the activists had not used the correct legal process to try to get the case in court, but would give them 60 days to restart their case using the proper procedure.

Her dissent could open the way for an appeal to the Supreme Court of Canada. The animal activists are considering their options.